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United States v. Carter

United States District Court, S.D. Texas, Houston Division

May 22, 2017

ROBERT EARL CARTER. Civil Action No. H-16-1133



         Defendant Robert Earl Carter, represented by counsel, filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (Docket Entry No. 73). Pending before the Court are the following additional motions:

(1) The Government's motion and supplemental motion to dismiss (Docket Entries No. 85, 86), to which Defendant filed a response (Docket Entry No. 87);
(2) The Government's untimely Supplemental Response, Motion for Summary Judgment on the Pleadings and Supplemental Motion for Summary Judgment[1] and Memorandum in Support (the "Supplemental Response") (Docket Entry No. 96), Defendant's Motion to Strike the Supplemental Response as untimely and filed without leave of court (Docket Entry No. 100), and the Government's Motion for Leave to File the Supplemental Response (Docket Entry No. 101);
(3) The Government's motion for unredacted copies of Defendant's habeas exhibits (Docket Entry No. 96);
(4) Defendant's motion for Brady materials relevant to his claim for prosecutorial misconduct (Docket Entry No. 102), to which the Government filed a response (Docket Entry No. 104); and
(5) The Government's motion to quash Defendant's subpoena of AUSA Daniel C. Rodriguez for his appearance and testimony as a witness at the evidentiary hearing (Docket Entry No. 103).


         On September 9, 2014, Defendant executed a written plea agreement and pleaded guilty to making false statements in his 2009 federal income tax return. Following a lengthy sentencing hearing on January 13, 2015, the Court sentenced Defendant to 36 months in prison to be followed by one year of supervised release. Defendant moved to delay entry of judgment and for a new trial/sentencing hearing. The Court denied the motions and entered judgment on March 31, 2015. No appeal was taken.

         Defendant raises the following section 2255 claims for a new sentencing hearing:

(1) Counsel was ineffective at sentencing;
(2) The Government committed prosecutorial misconduct at sentencing; and
(3) Cumulative error based on the above two claims. The Government argues that these claims are without merit.


         Generally, there are four grounds upon which a defendant may move to vacate, set aside, or correct his sentence pursuant to section 2255: (1) the imposition of a sentence in violation of the Constitution or the laws of the United States; (2) a lack of jurisdiction of the district court that imposed the sentence; (3) the imposition of a sentence in excess of the maximum authorized by law; and (4) the sentence is otherwise subject to collateral attack. 2&U.S.C. §2255; United States v. Placente, SI F.3d 555, 55&(5ihCir. 1996). Section 2255 is an extraordinary measure, and cannot be used for errors that are not constitutional or jurisdictional if those errors could have been raised on direct appeal. United States v. Stumpf, 900 F.2d 842, 845 (5th Cir. 1990). If the error is not of constitutional or jurisdictional magnitude, the movant must show the error could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice. United States v. Smith, 32 F.3d 194, 196 (5th Cir. 1994).


         The Government presented the following statement of proof at the plea hearing:

On or about April 4, 2011, in the Houston Division of the Southern District of Texas, [Defendant], a resident of the Houston Division of the Southern District of Texas, did willfully make and subscribe a U.S. individual income tax return Form 1040 with attached schedules for the calendar year 2009, which was verified by a written declaration that it was made under the penalties of perjury and was filed with the Internal Revenue Service which said income tax return he did not believe to be true and correct. And that the said return reported on Line 22 of Form 1040, U.S. individual tax return 2009, total income of $276, 270, whereas he then and there well knew and believed he received total income in addition to that heretofore stated, all in violation of Title 26, United States Code, § 7206(1).
This investigation originated when NASA OIG contacted IRS criminal investigation. After receiving a suspected irregularity referral on Enterprise Advisory Services, Inc., herein after EASI, which is located on 6671 Southwest Freeway, Suite 800 Houston, Texas, 77074, which performs as a prime contractor to NASA. The referral alleged consulting irregularities and fraudulent billing.
The evidence in this investigation has established that [Defendant] knowingly defrauded the Internal Revenue Service by diverting income from his company EASI, through his daughter, Deralyn R. Miller Company, Deralyn Miller, Inc., herein after DMI, by committing tax fraud.
The investigation established that [Defendant] used DMI to avoid reported income to the Internal Revenue Service that [he] had received in the form of bonuses. The evidence establishes [Defendant] knowingly and willfully made and subscribed a 2009 individual federal income tax return, which was false as to a material matter, and that he intentionally and willfully underreported his total taxable income. This resulted in his intentional omission of $504, 821 in personal taxable income.
[Defendant] is the founder, sole owner, and president and CEO of EASI. Deralyn R. Miller is the president and sole owner of DMI. Investigation established [Defendant] directed that $309, 821 in bonus income he received in 2009 for many [sic] EASI be converted into a check payable directly to DMI from EASI.
Approximately one month after Miller deposited this EASI check into her business account, she returned approximately 90 percent of the monies directly to [Defendant] using a Cashier's Check made payable to [Defendant]. Bank records reflect Miller retained $23, 000, and returned the remaining $286, 821 to [Defendant]. Ultimately, neither [Defendant] nor Miller reported any of [Defendant's] $309, 821 bonus on their personal income tax returns, nor did DMI as required File Form 1120S, U.S. Corporate Income TaxReturn for the 2009 tax year.
Pursuant to U.S. tax law, [Defendant] must pay federal income tax on any personal income earned before he may provide any of the monies to another individual or entity. In this case, the entire $309, 821 was personal income to [Defendant] in the form of a bonus from EASI, and therefore monies [he] was required to report in his annual individual federal income tax return.
Investigation further established that EASI issued [Defendant] another bonus check for $195, 000 on December 22, 2009, which [he] deposited into his personal savings account. EASI reported this 195, 000-dollar payment in their general ledger as executive variable pay. A financial incentive program recognizing the contributions employees made to EASI success [sic]. In short, a euphemism used by EASI for bonus back but did not report the income in [his] W-2 Form or issue [him] a Form 1099 miscellaneous income in 2009 as required.
Because EASI recorded this bonus payment as a reimbursement payment to [Defendant] [sic]. [Defendant] similarly did not, as required, report this 195, 000-dollar personal income bonus on his 2009 individual federal income tax return. Consequently, [Defendant] willfully and intentionally failed to report personal income of $504, 821 on his 2009 individual federal tax return in violation of federal law.

(Docket Entry No. 83, pp. 8-12, short exchanges between Court and prosecutor omitted.)

         Defendant admitted on the record that the Government's statement of proof was true. M, pp. 12, 18. In the written plea agreement, Defendant stipulated and agreed that he failed to report personal income of $171, 250.00 in 2007, $237, 500.00 in 2008, $504, 821.00 in 2009, and $195, 000.00 in 2010 in his federal individual income tax returns for those tax years, resulting in total unreported income of $1, 108, 571.00 from 2007 to 2010. Id., p. 13. During allocution, defense counsel informed the Court that Defendant "filed an amended tax return for 2009 and 2010 to address the [$] 195, 000. The IRS may have issues as to whether it was done correctly, but there has been an amended tax return filed this year." Id., p. 23.


         Defendant contends that the Government engaged in prosecutorial misconduct at sentencing when it misrepresented to the Court through argument and testimony that Defendant did not file amended income tax returns in November 2014, that he lied when he said that he did file them, and that counsel erroneously suggested that the IRS lost them.

         It is well established that the prosecution's knowing use of false testimony violates due process, Giglio v. United States, 405 U.S. 150, 154 (1972), and that a prosecutor has a duty to correct false or misleading testimony when it comes to his attention. Napue v. Illinois, 360 U.S. 264, 269 (1959). It is a defendant's burden to prove that the testimony was false or misleading, that the prosecution knew it, and that the testimony was material.

         The sentencing hearing record in the instant case reflects the following preliminary remarks by the Government:

We believe the issue[] that this Court is being asked to address here today [is] ... whether there is sufficient evidence to establish that [Defendant] has not fully accepted responsibility.
In this instance, we believe the evidence will show that the reason he should not be held to have accepted responsibility is because he has continued to engage in criminal conduct. In this case, what we're alleging is that, as a result of- he claims that he filed tax returns in November of this year - of last year, 2014.
We've made an attempt to verify that those returns had been filed. We found no record of them. In an attempt to remove that issue from consideration, we asked the defendant to refile those returns, the exact same returns he claimed he had filed. And that was done on January the 9th of this year with Agent Cory L'Heureux's assistance at the Internal Revenue Services Building.
It was at that time that we discovered that the tax return - three of the tax returns that had been provided to the government as having been filed in November of 2014 were not the tax returns that had actually - were now being represented as being filed.

(Docket Entry No. 54, pp. 12-13, emphasis added.)

         Counsel for Defendant responded with the following:

DEFENSE COUNSEL: Judge, if I may, I believe the basis for - and to give the Court just a real brief kind of factual timeline, [Defendant] was indicted in July of 2014. He pled guilty in -1 believe it was August of 2014 to underreporting his income in terms of the variable pay and the $195, 000 amounts that he received. He amended his returns in November of 2014 consistent with that plea, where he included that income in his returns. You know, why the IRS can't [find] returns that he mailed to them I have no idea.
So we get a call last week, the IRS says they can 'tfind the returns. Well, so what [Defendant] does is he goes to his CPA, Mr. Trappio. He gets another copy of the same returns. He - Mr. Trappio signs them, [Defendant] and his wife signs them, and he takes them to Agent L'Heureux and turns them over to him.

Id., pp. 14-15, emphasis added.

         At the hearing, the Government presented the following testimony of IRS criminal investigations special agent Cory Joseph L'Heureux:

THE GOVERNMENT: Okay. You've heard assertions by defendant's counsel that the defendant filed amended tax returns in November of 2014.
WITNESS: Correct.
THE GOVERNMENT: Based on those records and based on your own investigation, is there any evidence that the IRS has ever received any tax returns filed by [Defendant] on or about November 2014?

Id., p. 162. In imposing a thirty-six month sentence on Defendant, this Court stated that, "I do not find [Defendant's] testimony credible. I think it reflects that he has not been forthright with the Court, or with the IRS about the African art, or about his income tax returns, and, accordingly, I do not think acceptance of responsibility can be awarded." Id., p. 229.

         Defendant subsequently filed a motion for new trial/sentencing, purporting to present new evidence and explanations for damaging evidence and testimony that had been introduced at sentencing. Defendant amended the motion approximately two months later, stating that the IRS had recently found Defendant's amended returns, and that the IRS had received them in November 2014, consistent with Defendant's testimony at sentencing.

         This Court initially set the motion for a hearing, but later canceled the hearing and denied the motion for lack of jurisdiction. In denying a new ...

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